May 24, 2006
The defendant was indicted in 1999 for crimes that occurred one or two years earlier. The regular-mail letter with the summons was returned "address unknown." The state made no further attempt to serve the defendant until it located him in a Federal prison in 2005. The defendant moved to dismiss the indictment on statute of limitations grounds, and the trial court agreed.
So did the appellate court.
Writing for a unanimous court in State v. Jackson, Judge Corrigan notes that ORC 2901.13, which requires that a prosecution for a felony must be "commenced" within six years after the crime is committed, states that a prosecution isn't commenced by the return of an indictment unless "reasonable diligence" is used to execute service on it. Observing that regular mail wasn't even one of the service methods permitted under the rules, the opinion finds that the "lack of additional efforts to locate Jackson to serve him with the summons for eight years is indicative of the state's failure to exercise any diligence, much less the requisite 'reasonable diligence.'"
And in State v. Smith, the court finds that a four-year delay between an indictment an arrest was a violation of defendant's constitutional speedy trial rights, where the state never checked the BMV or did anything else to determine the defendant's address after the summons for the indictment came back unclaimed, Judge Rocco's opinion noting that the impediment to the defense by a delay of that length was "obvious."
Of course, the key case on the constitutional right of speedy trial is the U.S. Supreme Court's decision in Barker v. Wingo, which enunciates the four-part test for determining whether the right has been violated: the length of the delay, the reason for it, the defendant's assertion of the right, and the prejudice he's suffered. There's an assumption among the criminal bar that the last criterion can be shown only by demonstrating that defense witnesses or evidence have been lost as a result of the delay, but that's not true, as the court's decision in State v. Wells makes clear. The defendant had been incarcerated for 19 months prior to trial. The majority opinion noted that prejudice under Barker can take three possible forms: "(1) oppressive pretrial incarceration; (2) anxiety and concern of the accused; and (3) the possibility that the accused's defense will be impaired by dimming memories and the loss of exculpatory evidence." The court found that 19 months was oppressive, despite the fact that trial counsel had sought most of the continuances. And the court reversed on plain error grounds, no less; neither trial nor appellate counsel even raised the issue of constitutional speedy trial.